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Full-Text Articles in Law

Keynote Address, Justice John Paul Stevens (Ret.) Feb 2016

Keynote Address, Justice John Paul Stevens (Ret.)

University of Miami Law Review

No abstract provided.


Ashton, Bekins, And Necessity: Why Chapter 9 Is Constitutional, But Not The Only Way For Municipalities To Adjust Their Debts, Aaron Michael Dmiszewicki Jan 2016

Ashton, Bekins, And Necessity: Why Chapter 9 Is Constitutional, But Not The Only Way For Municipalities To Adjust Their Debts, Aaron Michael Dmiszewicki

University of Miami Business Law Review

The 1930s saw the nation in crisis, steeped in the worst of the Great Depression. In 1936, over 2,000 municipalities, counties, and other governmental units, in 41 of the 48 states, were known to be in default. In response to this crisis, Congress amended the Bankruptcy Act in 1934 and passed the first municipal bankruptcy statute. Shortly thereafter, the Supreme Court struck it down. Undeterred, Congress passed another municipal bankruptcy statute in 1937, which was almost identical to the previously invalidated law. In 1938, the Supreme Court, now stocked with Roosevelt-appointed New Deal sympathizers, upheld the law.

However, the ...


Unfair Coercion, Or Greater Deference? Two New Sides Of King V. Burwell, Tom Miller May 2015

Unfair Coercion, Or Greater Deference? Two New Sides Of King V. Burwell, Tom Miller

University of Miami Business Law Review

Litigation challenging the legality of an Internal Revenue Service rule that became final on May 2012 has traveled a long, winding, and contentious path. The IRS rule authorized the distribution of federal premium assistance tax credits in all health benefits exchanges under the Patient Protection and Affordable Care Act of 2010 (the “ACA”). However, potential legal problems with reconciling various sections of the final legislation involving those tax credits were identified as early as December 6, 2010. On September 19, 2012, the first of four different legal challenges to the IRS rule was filed in federal district court in Oklahoma ...


King V. Burwell And The Rise Of The Administrative State, Ronald D. Rotunda May 2015

King V. Burwell And The Rise Of The Administrative State, Ronald D. Rotunda

University of Miami Business Law Review

The Patient Protection and Affordable Care Act—popularly called either the “ACA,” or “Obamacare” by opponents, proponents, and even the White House—is a complex law totaling nearly a thousand pages in length. The litigation now before the Supreme Court in King v. Burwell presents, on the surface, a simple issue of statutory interpretation. However, that surface has a very thin veneer. If the Court allows administrators carte blanche to change the very words of a statute, we will have come a long way towards governance by bureaucrats. Over the years, Congress has delegated many of its powers, but it ...


The Subsidy Question In King V. Burwell—A Federalist Response To Crony Capitalism, Antonio F. Perez May 2015

The Subsidy Question In King V. Burwell—A Federalist Response To Crony Capitalism, Antonio F. Perez

University of Miami Business Law Review

On the surface, King v. Burwell appears to be a simple case about statutory interpretation. In the Affordable Care Act (widely known as Obamacare), when Congress referred to the “State,” in the provision triggering federal subsidies to insurance consumers for purchases made from federally-authorized insurance providers selling federally-authorized insurance products, should the “State” be understood to refer to the federal market (i.e., exchanges) as well as “State” markets. Simple tools of statutory construction–namely, that Congress knew full well how to refer to a “federal” exchange and failed to do so–would seem to be sufficient to supply a ...


From The New Deal To The New Healthcare: A New Deal Perspective On King V. Burwell And The Crusade Against The Affordable Care Act, Sarah Helene Duggin May 2015

From The New Deal To The New Healthcare: A New Deal Perspective On King V. Burwell And The Crusade Against The Affordable Care Act, Sarah Helene Duggin

University of Miami Business Law Review

Americans describe the new healthcare system established by the Patient Protection and Affordable Care Act (“ACA”) as both a blessing and a nightmare. For millions of low and middle income Americans, the ACA offers access to health insurance they could not otherwise afford. The ACA’s opponents, however, view the new healthcare system as a threat to economic prosperity, an intrusion on personal liberty and a violation of the principles of federalism at the heart of our system of government. These same kinds of arguments were made more than eighty years ago in response to President Franklin Delano Roosevelt’s ...


Clear And Simple Deportation Rules For Crimes: Why We Need Them And Why It's Hard To Get Them, Rebecca Sharpless Jan 2015

Clear And Simple Deportation Rules For Crimes: Why We Need Them And Why It's Hard To Get Them, Rebecca Sharpless

Articles

In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment duty to advise noncitizen clients of the "clear" immigration consequences of a proposed plea agreement. This Article argues that the Court's reference to clarity denotes predictability, not simplicity, and that defense attorneys must advise their clients of predictable immigration consequences, even if they are difficult to ascertain. The scope of this duty has broadened as the U.S. Supreme Court has made the crime-related deportation rules more determinate, although many rules remain complex. A legislative move to a regime of simple deportation ...


A New American Dilemma?: U.S. Constitutionalism Vs. International Human Rights, Stanley N. Katz Oct 2013

A New American Dilemma?: U.S. Constitutionalism Vs. International Human Rights, Stanley N. Katz

University of Miami Law Review

No abstract provided.


Guantánamo Military Commissions: “Judicial Approval And Guidance”, Christina Frohock Jan 2013

Guantánamo Military Commissions: “Judicial Approval And Guidance”, Christina Frohock

Articles

No abstract provided.


“Brisas Del Mar”: Judicial And Political Outcomes Of The Cuban Rafter Crisis In Guantánamo, Christina Frohock Jan 2012

“Brisas Del Mar”: Judicial And Political Outcomes Of The Cuban Rafter Crisis In Guantánamo, Christina Frohock

Articles

No abstract provided.


Federal Law In State Court: Judicial Federalism Through A Relational Lens, Charlton C. Copeland Jan 2011

Federal Law In State Court: Judicial Federalism Through A Relational Lens, Charlton C. Copeland

Articles

Enforcing federalism is most commonly thought to involve the search for a constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared authority, federalism enforcement proceeds from a determination about the site of substantive power. This conception of federalism enforcement preserves the Constitution's commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress has exceeded its authority in reenacting the Voting Rights Act's ...


Nonparticipatory Association And Compelled Political Speech: Consent As A Constitutional Principle In The Wake Of Citizens United , Frances R. Hill Jan 2011

Nonparticipatory Association And Compelled Political Speech: Consent As A Constitutional Principle In The Wake Of Citizens United , Frances R. Hill

Articles

No abstract provided.


Cracks In The Wall, A Bulge Under The Carpet: The Singular Story Of Religion, Evolution, And The U.S. Constitution, Susan Haack Jan 2011

Cracks In The Wall, A Bulge Under The Carpet: The Singular Story Of Religion, Evolution, And The U.S. Constitution, Susan Haack

Articles

No abstract provided.


Response: The Continuing Relevance Of The Establishment Clause: A Reply To Professor Richard C. Schragger, Caroline Mala Corbin Jan 2010

Response: The Continuing Relevance Of The Establishment Clause: A Reply To Professor Richard C. Schragger, Caroline Mala Corbin

Articles

No abstract provided.


Ex Parte Young: Sovereignty, Immunity, And The Constitutional Structure Of American Federalism, Charlton C. Copeland Jan 2009

Ex Parte Young: Sovereignty, Immunity, And The Constitutional Structure Of American Federalism, Charlton C. Copeland

Articles

No abstract provided.


Property And Probable Cause: The Fourth Amendment's Principled Protection Of Privacy, Ricardo J. Bascuas Jan 2008

Property And Probable Cause: The Fourth Amendment's Principled Protection Of Privacy, Ricardo J. Bascuas

Articles

No abstract provided.


Mixed Speech: When Speech Is Both Private And Governmental, Caroline Mala Corbin Jan 2008

Mixed Speech: When Speech Is Both Private And Governmental, Caroline Mala Corbin

Articles

Speech is generally considered to be either private or governmental, and this dichotomy is embedded in First Amendment jurisprudence. However, speech is often neither purely private nor purely governmental but rather a combination of the two. Nonetheless, the Supreme Court has not yet recognized mixed speech as a distinct category of speech. This Article suggests considerations for identifying mixed speech and exposes the shortcomings of the current approach of classifying all speech as either private or governmental when determining whether viewpoint restrictions pass First Amendment muster. Treating mixed speech as government speech gives short shrift to the free speech interests ...


Fourth Amendment Lessons From The Highway And The Subway: A Principled Approach To Suspicionless Searches, Ricardo J. Bascuas Jan 2007

Fourth Amendment Lessons From The Highway And The Subway: A Principled Approach To Suspicionless Searches, Ricardo J. Bascuas

Articles

The threat of future terrorist attacks has sped the proliferation of random, suspicionless searches and seizures, such as those now made of New York City subway riders. Courts assess the legality of such searches with an inherently flawed balancing test developed to assess searches and seizures made without "probable cause." Although scholars and Justices alike have decried the resort to balancing individual interests against the government's need to search, no alternative framework has been proposed. This Article proposes a more principled, objective inquiry for determining when suspicionless searches can be made. To eliminate the need for balancing, this Article ...


Creating A Viral Federal Privacy Standard, A. Michael Froomkin Jan 2007

Creating A Viral Federal Privacy Standard, A. Michael Froomkin

Articles

No abstract provided.


A Hidden History Of Affirmative Obligation, Patrick O. Gudridge Jan 2007

A Hidden History Of Affirmative Obligation, Patrick O. Gudridge

Articles

No abstract provided.


Above The Law? The Constitutionality Of The Ministerial Exemption From Antidiscrimination Law, Caroline Mala Corbin Jan 2007

Above The Law? The Constitutionality Of The Ministerial Exemption From Antidiscrimination Law, Caroline Mala Corbin

Articles

No abstract provided.


The Unconstitutionality Of "Hold Until Cleared": Reexamining Material Witness Detentions In The Wake Of The September 11th Dragnet, Ricardo J. Bascuas Jan 2005

The Unconstitutionality Of "Hold Until Cleared": Reexamining Material Witness Detentions In The Wake Of The September 11th Dragnet, Ricardo J. Bascuas

Articles

No abstract provided.


The Constitution Glimpsed From Tule Lake, Patrick O. Gudridge Jan 2005

The Constitution Glimpsed From Tule Lake, Patrick O. Gudridge

Articles

No abstract provided.


Agora: The United States Constitution And International Law Editors' Introduction, Lori Fisler Damrosh, Bernard H. Oxman Jan 2004

Agora: The United States Constitution And International Law Editors' Introduction, Lori Fisler Damrosh, Bernard H. Oxman

Articles

No abstract provided.


The Anti-Emergency Constitution, Laurence H. Tribe, Patrick O. Gudridge Jan 2004

The Anti-Emergency Constitution, Laurence H. Tribe, Patrick O. Gudridge

Articles

No abstract provided.


Owen Fiss: Heroism In The Law, Paul W. Kahn Oct 2003

Owen Fiss: Heroism In The Law, Paul W. Kahn

University of Miami Law Review

No abstract provided.


Holistic Interpretation, Comparative Constitutionalism, And Fiss-Ian Freedoms, Vicki C. Jackson Oct 2003

Holistic Interpretation, Comparative Constitutionalism, And Fiss-Ian Freedoms, Vicki C. Jackson

University of Miami Law Review

No abstract provided.


The Truth About Owen Fiss, Robert A. Burt Oct 2003

The Truth About Owen Fiss, Robert A. Burt

University of Miami Law Review

No abstract provided.


Owen M. Fiss: The Influence Of His Pre-Legal Education, Morton J. Horwitz Oct 2003

Owen M. Fiss: The Influence Of His Pre-Legal Education, Morton J. Horwitz

University of Miami Law Review

No abstract provided.


The Office Of The Oath, Patrick O. Gudridge Jan 2003

The Office Of The Oath, Patrick O. Gudridge

Articles

No abstract provided.